NOTICE: NOT FOR OFFICIAL PUBLICATION. 

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE 

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

JEREMY CARDWELL, Appellant.

No. 1 CA-CR 14-0397 

Appeal from the Superior Court in Maricopa County 

No. CR2013-101774-001 SE

The Honorable Joseph C. Kreamer, Judge 

AFFIRMED 

COUNSEL 

Arizona Attorney General’s Office, Phoenix 

By Joseph T. Maziarz 

Counsel for Appellee 

Ballecer & Segal, L.L.P., Phoenix 

By Natalee E. Segal 

Counsel for Appellant
STATE v. CARDWELL 

Decision of the Court 

2

MEMORANDUM DECISION 

Judge Lawrence F. Winthrop delivered the decision of the Court, in which 

Presiding Judge Peter B. Swann and Judge Donn Kessler joined. 

W I N T H R O P, Judge:

¶1 Jeremy Cardwell (“Appellant”) appeals his convictions and 

sentences for first degree murder and burglary in the second degree. He 

argues the trial court erred in three evidentiary rulings, in denying his 

request for a third-party culpability jury instruction, and in considering 

pecuniary gain as an aggravating factor for sentencing purposes. Finding 

no error, we affirm. 

FACTS AND PROCEDURAL BACKGROUND1

¶2 After the victim and her husband, Michael Mors, divorced in 

2009, the victim continued to reside in the couple’s home (“the Home”). 

The divorce had been contentious, and although the family court had 

ordered the victim to sell the Home and pay Mors his share of any potential 

sale proceeds, a downturn in the local housing market prevented the victim 

from doing so immediately. The victim obtained an order of protection 

against Mors, prohibiting him from contacting her or coming to the Home. 

¶3 Mors and Appellant were close friends and roommates. In 

January 2012, they moved into a bedroom in a home owned by a couple 

they had recently met, after explaining to the couple that “they needed 

somewhere to stay until their house became available.” They each paid 

$200 per month in rent. 

¶4 Between 5:55 p.m. and 6:18 p.m. on February 25, 2012, the 

victim’s boyfriend went to the Home, where he discovered the victim’s

“cold” lifeless body. She had been strangled sometime after approximately 

11:00 a.m., and pennies covered her eyes. The subsequent police 

investigation revealed that, although the victim’s credit and debit cards and 

 

1 We view the facts in the light most favorable to sustaining the 

verdicts and resolve all reasonable inferences against Appellant. See State 

v. Kiper, 181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994). 
STATE v. CARDWELL 

Decision of the Court 

3

a meat slicer were apparently missing, the Home had been “staged” to 

appear as if it had been burglarized.2 Mors’ fingerprints were discovered 

on a mirror on a closet door in the Home. 

¶5 In March 2012, Mors “got the keys to the house,” and 

Appellant moved into the Home the same day. Sometime thereafter, 

Appellant was placed in jail on unrelated charges. In May 2012, Mors sold 

the Home. Mors received $172,196.14 from the proceeds, and he moved to 

another state in June 2012. 

¶6 Initially, Mors was a suspect in the victim’s murder, but his 

DNA did not match the DNA collected from underneath the victim’s 

fingernails. Appellant’s DNA, however, was found to be a contributor to 

the DNA mixture under the victim’s left fingernails.

¶7 Based on information gleaned from cell phone towers in the 

area, police determined Appellant’s cell phone and, presumably, 

Appellant, were near the Home at approximately the time the victim was 

killed, but Mors’ phone was not. Police also obtained a postcard (“the 

Postcard”) written by Appellant while he was in jail after the victim’s 

murder.3 The Postcard was addressed to Mors at the Home’s address and 

delivered to the Home in July 2012 when its new owners—who purchased 

the Home from Mors—resided there. The message on the Postcard 

indicates Appellant believed he had satisfied his obligations pursuant to a 

“deal” between him and Mors, and Appellant wanted “to know where we 

stand.”

¶8 A grand jury issued an indictment, charging Appellant with 

Count I, first degree murder, a class one felony, and Count II, burglary in 

the second degree, a class three felony.4 The State later alleged multiple 

aggravating factors, including that Appellant committed the charged 

 

2 No one attempted to use the missing credit and debit cards after the 

victim’s death. The day after the victim was killed, however, Appellant 

gave a meat slicer to the couple with whom he and Mors had been living. 

Appellant claimed he had obtained the meat slicer at a garage sale. 

3 Before the Postcard was admitted into evidence, the State redacted 

from it all information indicating Appellant’s incarceration.

4 The murder charge was predicated on alternative theories of 

premeditation and felony murder. See Ariz. Rev. Stat. (“A.R.S.”) § 13-

1105(A)(1)-(2) (2010). 
STATE v. CARDWELL 

Decision of the Court 

4

offenses for pecuniary gain. At trial, and over Appellant’s objections, the 

trial court admitted into evidence photographs of the victim’s corpse and 

the “ransacked” Home, the Postcard, and expert testimony regarding the 

relative locations of Appellant’s and Mors’ cell phones around the time of 

the murder. Before the court instructed the jury, Appellant proposed a 

specific third-party culpability instruction, arguing the trial evidence—

specifically Mors’ fingerprints in the Home—reasonably supported giving 

the instruction. The trial court denied Appellant’s request but permitted 

him to argue the evidence tended to create reasonable doubt as to his guilt. 

¶9 The jury found Appellant guilty as charged, and the court 

imposed a natural life sentence for the murder conviction and a concurrent, 

aggravated fifteen-year prison term for the burglary conviction. Appellant 

timely appealed, and we have jurisdiction pursuant to the Arizona 

Constitution, Article 6, Section 9, and A.R.S. §§ 12–120.21(A)(1) (2003), 13–

4031 (2010), and 13–4033(A) (2010). 

ANALYSIS 

 I. Evidentiary Rulings 

¶10 Generally, relevant evidence is admissible unless proscribed 

by law or an evidentiary rule. Ariz. R. Evid. 402. “Evidence is relevant if: 

(a) it has any tendency to make a fact more or less probable than it would 

be without the evidence; and (b) the fact is of consequence in determining 

the action.” Ariz. R. Evid. 401. The court may, however, exclude relevant 

evidence if its probative value is substantially outweighed by a danger of 

unfair prejudice or needlessly presenting cumulative evidence. Ariz. R. 

Evid. 403.

¶11 We review the trial court’s evidentiary rulings for an abuse of 

discretion. State v. Davolt, 207 Ariz. 191, 208, ¶ 60, 84 P.3d 456, 473 (2004) 

(reviewing the admission of photographs and videotape); State v. Chavez, 

225 Ariz. 442, 443, ¶ 5, 239 P.3d 761, 762 (App. 2010) (reviewing the 

admission of text messages over a hearsay objection); State v. Salazar, 182 

Ariz. 604, 610, 898 P.2d 982, 988 (App. 1995) (reviewing the preclusion of 

expert witness testimony); see also State v. Cañez, 202 Ariz. 133, 153, ¶ 61, 42 

P.3d 564, 584 (2002) (“Because the trial court is best situated to conduct the 

Rule 403 balance, we will reverse its ruling only for abuse of discretion.”

(citation omitted)), supplemented by 205 Ariz. 620, 74 P.3d 932 (2003), and 

abrogation on other grounds recognized by McKinney v. Ryan, 813 F.3d 798, 815-

26 (9th Cir. 2015). An abuse of discretion occurs when “no reasonable judge 

would have reached the same result under the circumstances.” State v. 
STATE v. CARDWELL 

Decision of the Court 

5

Armstrong, 208 Ariz. 345, 354, ¶ 40, 93 P.3d 1061, 1070 (citation omitted), 

supplemented by 208 Ariz. 360, 93 P.3d 1076 (2004). 

A. Photographs 

¶12 Appellant challenges the admission of several photographs 

into evidence. Three photographs, collectively, show two handgun holsters 

and boxes of ammunition in open drawers, to the left of which are fourteen 

books and other unidentifiable objects strewn on the floor (“the Ransack 

Photos”). The remaining photographs relate to the medical examiner’s 

autopsy: three pre-autopsy photos of the victim’s unclothed body lying on 

an examination table (“the Pre-Autopsy Photos”), and autopsy photos 

depicting (1) the victim’s reflected scalp exposing an acute right 

postauricular focal hemorrhage resulting from “some type of force or 

impact,” and (2) her dissected neck showing bleeding into the entire right 

sternocleidomastoid muscle, which indicates the victim was recently 

strangled and/or smothered (“the Autopsy Photos”).

¶13 In assessing the admissibility of photographs, we utilize a 

three-part test, in which we examine (1) relevance, (2) the tendency to incite 

or inflame, and (3) the probative value versus the potential to cause unfair 

prejudice. Davolt, 207 Ariz. at 208, ¶ 60, 84 P.3d at 473. “Photographs are 

relevant when they aid the jury in understanding an issue in the case.” State 

v. Jones, 203 Ariz. 1, 9, ¶ 28, 49 P.3d 273, 281 (2002) (citation omitted). 

Photographs may be relevant to corroborate testimony; to illustrate or 

explain testimony; to identify the victim; to show the nature, extent, and 

location of injuries; to help determine the degree of the crime; and to 

corroborate the State’s theory of how and why the crime was committed. 

State v. Anderson, 210 Ariz. 327, 339-40, ¶ 39, 111 P.3d 369, 381-82 (2005). 

Relevant photographs may be admitted into evidence even if they may tend 

to prejudice the jury against the defendant. State v. Bocharski, 200 Ariz. 50, 

55, ¶ 21, 22 P.3d 43, 48 (2001). Even gruesome or inflammatory photographs 

may be admitted, as long as they are not admitted for the sole purpose of 

inflaming the jury. State v. Morris, 215 Ariz. 324, 339, ¶ 70, 160 P.3d 203, 218 

(2007). 

¶14 Appellant contends the Ransack Photos are irrelevant 

because the State had many other photographs that depict the Home’s 

disarray, and the gun-related evidence is unfairly prejudicial because it 

“interjects an element of violence and dangerousness . . . without serving a 

probative purpose.” We disagree.
STATE v. CARDWELL 

Decision of the Court 

6

¶15 The Ransack Photos were relevant to illustrate the State’s 

theory of premeditation; namely, that Appellant, to deflect suspicion from 

Mors and himself, staged the scene to appear as if “a burglary that went 

bad” had occurred. And although photographs of other locations in the 

Home showing it had been “ransacked” were admitted, none of those other 

photos depicted the particular piece of furniture in the victim’s bedroom, 

which is where her body was found. Further, the Ransack Photos are not 

inflammatory, and the depiction of items related to handguns was not 

prejudicial because the State made clear at trial that no guns were stolen or 

otherwise used in the commission of the charged offenses. The trial court 

did not abuse its discretion in admitting the Ransack Photos. 

¶16 Appellant also challenges the relevancy of the Pre-Autopsy 

Photos, and contends they only served to evoke the jurors’ sympathy. We 

conclude otherwise. The Pre-Autopsy Photos showed some of the victim’s 

external injuries, including a defensive injury to her left hand. The photos 

were, therefore, admitted not to evoke sympathy, but to help illustrate the 

medical examiner’s testimony regarding the victim’s injuries, and to 

provide context to the examiner’s testimony explaining how the body was 

prepared for the autopsy. 

¶17 With respect to the Autopsy Photos, Appellant argues the 

photos’ depictions of injuries that indicate the victim was asphyxiated are 

irrelevant because he did not challenge the victim’s cause of death. 

However, the fact and cause of death in a homicide prosecution are always 

relevant, even if undisputed. Cañez, 202 Ariz. at 154, ¶ 66, 42 P.3d at 585. 

Thus, Appellant’s trial strategy in not contesting the cause of death did not 

render the Autopsy Photos irrelevant. See id. (noting the State “must carry 

its burden of proof on uncontested issues as well as contested ones” and, 

therefore, rejecting an assertion that photos of the deceased were irrelevant 

because they were “probative only of matters not in dispute”).

¶18 Finally, the Pre-Autopsy and Autopsy Photos are not so 

gruesome that their probative value is outweighed by the danger of unfair 

prejudice under Rule 403. See, e.g., State v. Castaneda, 150 Ariz. 382, 391, 724 

P.2d 1, 10 (1986) (holding that photographs of stab wounds in the victim’s 

chest and the victim’s nude body smeared with blood were properly 

admitted); State v. Poland, 144 Ariz. 388, 401, 698 P.2d 183, 196 (1985) 

(holding that a photograph of a victim’s fully clothed body lying face down 

was not gruesome, and a close-up photograph of a victim’s torso and 

decomposed head, although gruesome, was properly admitted because the 
STATE v. CARDWELL 

Decision of the Court 

7

probative value outweighed the prejudicial effect). The court did not abuse 

its discretion in admitting the Pre-Autopsy and Autopsy Photos.5

B. Postcard

¶19 As redacted, the Postcard bears the following message: 

Hey man[,] what’s going on? I got the message from a friend 

you just got done re-modeling. I wish you would write. I 

need to know where we stand. Again, I would like to hear 

from you on where we stand. I’ve kepted [sic] my deal.

Please just give me the courtesy of a letter. I know you’ve 

been busy[.] PLEASE!!! 

¶20 Appellant contends the Postcard should have been precluded 

because its probative value is substantially outweighed by the danger of 

unfair prejudice.6 See Ariz. R. Evid. 403. He argues the Postcard’s reference 

to a deal is “speculative” and “not probative of a particular fact,” and that 

“[t]here was no context given for the ‘deal.’” Appellant also asserts the 

Postcard’s probative value is diminished because other trial evidence 

establishes a connection between him and Mors. We reject these 

arguments. 

¶21 The Postcard’s reference to a “deal” was not so speculative 

that it lacked probative value. Given the circumstances around the time of 

the murder—namely that (1) Mors had little or no income, (2) Mors was 

expecting a share of the sale proceeds once the victim sold the Home, (3) 

the victim had not yet listed the Home for sale, (4) Mors was not permitted 

to be in the Home due to the order of protection, (5) Mors and his friend, 

Appellant, wanted to (and Appellant did) move into the Home apparently 

to discontinue paying rent, and (6) Mors received a large sum of money 

after he sold the Home—one could reasonably infer that the “deal” referred 

to an agreement between Appellant and Mors, whereby Appellant would 

murder the victim in exchange for a share of the expected proceeds when 

 

5 It appears from the record that two other complained-of 

photographs were not admitted into evidence. In any event, we find no 

abuse of the court’s discretion.

6 In concluding the partially redacted Postcard was admissible, the 

trial court rejected Appellant’s hearsay objection and concluded the 

Postcard constituted a non-hearsay statement by a party opponent. See

Ariz. R. Evid. 801(d)(2)(A). 
STATE v. CARDWELL 

Decision of the Court 

8

Mors sold the Home. Indeed, a detective who investigated this case 

testified on cross-examination that, in his opinion, the Postcard’s reference 

to a “deal,” in conjunction with other evidence, could only mean Appellant 

and Mors had such an agreement. 

¶22 Construed in such a manner, the Postcard is the only evidence 

of Appellant’s admission to the crimes in his own words. Accordingly, the 

Postcard was highly relevant not only to prove Appellant’s premeditation 

to commit murder, but also to rebut his third-party defense. Furthermore, 

Appellant cannot establish the unfairly prejudicial nature of the Postcard. 

See State v. Mott, 187 Ariz. 536, 545, 931 P.2d 1046, 1055 (1997) (“Unfair 

prejudice results if the evidence has an undue tendency to suggest decision 

on an improper basis, such as emotion, sympathy, or horror.” (citation 

omitted)). As noted, the State redacted all information on the Postcard 

showing Appellant was incarcerated when he mailed it. The court did not 

abuse its discretion in admitting the Postcard. 

C. Expert Testimony 

¶23 After his indictment in this case, Appellant indicated his 

intent to present a defense based solely on the insufficiency of the State’s 

evidence. After voir dire commenced, however, he gave notice that he 

intended to assert a third-party culpability defense based on evidence 

expected to be presented at trial indicating Mors could have been physically 

present in the Home at the time the victim was killed, and therefore could 

have killed the victim instead of Appellant. Noting the untimeliness of 

Appellant’s notice and request to admit third-party culpability evidence, 

the court decided “to give the state a lot of latitude to tell [the court] what 

it needs to do to be ready, because [the third-party culpability defense] is 

unexpected to the state.” Almost immediately, the State informed 

Appellant and the court that it would need “to call [cell] tower experts” to 

rebut the proffered defense and establish that Appellant, and not Mors, was 

near the victim’s home around the time of the murder. Ten days later, the 

State disclosed Steve Kartz, an employee of Sprint, the mobile carrier used 

by Appellant, and Anthony Badalamenti, an employee of AT&T, the mobile 

carrier used by Mors. Appellant moved to preclude Kartz and Badalamenti 

from testifying, arguing in part their testimony was cumulative to the 

State’s expected expert testimony of Westry Wilton. See Ariz. R. Evid. 403. 

The court denied the motion. 

¶24 Appellant contends the court erred in denying his motion to 

preclude the testimony of Kartz and Badalamenti. He argues the testimony 

provided by them was cumulative, unnecessary, and a waste of time. 
STATE v. CARDWELL 

Decision of the Court 

9

¶25 Wilton testified as a criminal intelligence analyst employed 

by the Rocky Mountain Information Network, an organization that 

analyzes cellphone records provided by law enforcement agencies and 

prepares for those agencies reports and cellphone maps showing the 

locations, over a given period of time, of the cellphones related to the 

records. The maps Wilton created in this case illustrate the relative 

locations of the cellphones used by Appellant, Mors, the victim, and the 

victim’s boyfriend on February 25, 2012, and, with respect to Appellant and 

Mors, the six preceding days as well. Wilton determined the locations 

based on the phone records’ indications of the times the phones would 

“ping” off particular cellphone towers. On cross-examination, Wilton 

admitted she is not an expert in the field of cellphone tower operations. 

¶26 Kartz and Badalamenti are radio frequency engineers who 

testified about various technical aspects of their respective employer 

cellphone carriers’ “towers.” In doing so, they also corroborated Wilton’s 

testimony regarding the locations of Mors’ and Appellant’s cellphones 

around the time of the victim’s murder. As Appellant concedes, Kartz and 

Badalamenti testified in more detail than did Wilton regarding “the way 

the cell towers work specific to each carrier.”

¶27 Because Kartz and Badalamenti testified as experts regarding 

a field of cellphone tower technology in which Wilton was not an expert, 

their expert testimony was necessary to rebut Appellant’s attempt to 

impeach Wilton on the basis of her lack of expertise. Accordingly, Kartz’s 

and Badalamenti’s testimony was not unnecessarily cumulative, and the 

court did not abuse its discretion in denying Appellant’s motion to 

preclude.7 See State v. Verive, 128 Ariz. 570, 576, 627 P.2d 721, 727 (App. 

1981) (“To reject relevant evidence on the basis of unfair prejudice and 

cumulativeness is within the discretion of the trial court.”).

 II. Third-Party Culpability Instruction 

¶28 Appellant next argues the trial court erred by refusing his 

request to instruct the jury on third-party culpability. Appellant contends 

the court was required to do so because the evidence supported his theory 

 

7 Further, Appellant did not raise an objection based on the alleged 

cumulative nature of the testimony when Kartz and Badalamenti testified, 

despite the fact that the trial court expressly allowed him to do so, stating it 

would consider such an objection “if and when it happens.”
STATE v. CARDWELL 

Decision of the Court 

10

of third-party culpability. He cites no authority supporting his assertion 

that a jury must be instructed on such a defense theory. 

¶29 We will not reverse a trial court’s decision to refuse a jury 

instruction absent a clear abuse of discretion. State v. Cox, 214 Ariz. 518, 

521, ¶ 16, 155 P.3d 357, 360 (App. 2007). Although a defendant is entitled 

to a jury instruction on any theory reasonably supported by the evidence, a 

trial court acts within its discretion when it refuses an instruction that lacks 

a factual or legal basis. See State v. Vandever, 211 Ariz. 206, 208, ¶ 7, 119 P.3d 

473, 475 (App. 2005) (citations omitted); see also State v. Johnson, 205 Ariz. 

413, 417, ¶ 10, 72 P.3d 343, 347 (App. 2003) (recognizing that a conviction 

may be reversed if jury instructions may have misled the jury or are 

otherwise deficient (citations omitted)). Moreover, “[w]here the law is 

adequately covered by [the] instructions as a whole, no reversible error has 

occurred.” State v. Doerr, 193 Ariz. 56, 65, ¶ 35, 969 P.2d 1168, 1177 (1998) 

(citation omitted). “We will reverse only if the instructions, taken together, 

would have misled the jurors.” Id. (citation omitted). When assessing the 

adequacy of jury instructions, closing arguments may also be considered. 

State v. Bruggeman, 161 Ariz. 508, 510, 779 P.2d 823, 825 (App. 1989). 

¶30 Appellant requested the following instruction: 

Jeremy Cardwell maintains that he did not kill [the victim], 

but that Michael Mors did instead. 

In order for you to consider a third party culpability defense, 

Defendant must show some evidence concerning a third 

person or third persons that tends to create reasonable doubt 

as to his guilt. Defendant does not need to prove beyond a 

reasonable doubt that the third party is guilty of the charged 

offense. The evidence need only tend to show that a third 

person or persons committed the offenses and thus tend to 

create a reasonable doubt as to Defendant’s guilt.

SOURCES: State v. Prion, 203 Ariz. 157, 161, 52 P.3d 189[, 193] 

(2002); State v. Gibson, 202 Ariz. 321, 323, 44 P.3d 1001[, 1003] 

(2002); [People] v. Henderson, 110 Cal. App. 4th 737, 741-43 (Cal. 

Ct. App. 2003); State v. Arroyo, 935 A.2d 975, 982-87 ([Conn.] 

2007).

¶31 We agree with Appellant that the trial evidence could be 

construed as supporting a defense theory that Mors murdered the victim. 

We disagree with his assertion, however, that Arizona law requires the 

third-party culpability instruction he presented to the court. Moreover, the 
STATE v. CARDWELL 

Decision of the Court 

11

other instructions provided by the court, in addition to the parties’ closing 

arguments, adequately covered the substance of third-party culpability. 

¶32 First, the Arizona cases Appellant relied on for his proposed 

instruction, Prion and Gibson, deal with the admissibility of third-party 

culpability evidence, not third-party culpability jury instructions. State v. 

Parker, 231 Ariz. 391, 405, ¶ 55, 296 P.3d 54, 68 (2013) (citing Prion, 203 Ariz. 

at 161-62, ¶¶ 19-27, 52 P.3d at 193-94; Gibson, 202 Ariz. at 323-24, ¶¶ 11-19, 

44 P.3d at 1003-04). And, as our supreme court has expressly recognized, 

“[n]o Arizona case has required a third-party culpability instruction.” Id.

¶33 Second, the trial court’s instructions to the jury regarding the 

presumption of innocence and the State’s burden to prove guilt beyond a 

reasonable doubt adequately reflected the substance of the proposed 

instruction. See id. at ¶ 56. Furthermore, defense counsel’s closing 

argument made clear to the jurors that they could not find Appellant guilty 

if they determined Mors killed the victim. The court did not abuse its 

discretion in refusing to give the third-party culpability instruction. 

 III. Pecuniary Gain 

¶34 At sentencing, the court found the following factors 

supported a natural life sentence for the murder conviction and an 

aggravated sentence for the burglary conviction: Appellant’s five prior 

felony convictions, harm to the victim and her family, and pecuniary gain.8

Of those factors, the court found harm to the victim and her family to be 

“the most weighty and crushing . . . a huge aggravating factor.” As for 

pecuniary gain, the court stated as follows: 

We are not talking about pecuniary gain. I agree that 

there’s not really clear evidence there. We can look at the 

postcard. We can look at circumstances. I do consider 

pecuniary gain but I don’t give it [a] whole lot of weight 

because of the concern I have got regarding the lack of 

 

8 Regarding its choice between a parole-eligible and a natural life 

sentence for the murder conviction, the court found “the fact that 

[Appellant] went back and lived in [the Home] for two to three weeks to 

me tips the balance [to imposing natural life].” Although natural life is 

technically not an “aggravated” sentence that requires specific findings, see 

State v. Fell, 210 Ariz. 554, 558, ¶¶ 12-15, 115 P.3d 594, 598 (2005), a court is 

required to “consider” the aggravating and mitigating circumstances listed 

in A.R.S. § 13-701 (Supp. 2015). A.R.S. § 13-752(Q)(2) (Supp. 2015).
STATE v. CARDWELL 

Decision of the Court 

12

evidence as to what that pecuniary gain is. However, I think 

there is a pretty strong inference that there was or was 

expected to be pecuniary gain based on the evidence that was 

there. 

The court found no mitigating factors. 

¶35 Appellant argues the court erred in considering pecuniary 

gain as an aggravating factor in his sentencing. We find no error. 

¶36 The preponderance of the trial evidence supports an inference 

that Appellant murdered the victim in anticipation of the receipt of 

something of pecuniary value. See State v. Martinez, 210 Ariz. 578, 585, ¶ 26, 

115 P.3d 618, 625 (2005). Specifically, facts and inferences from the record 

support the conclusion that Appellant stole the victim’s credit and debit 

cards, took the meat slicer from the Home, lived in the Home rent-free after 

the murder, and expected from Mors a share of the Home’s sale proceeds. 

Accordingly, to whatever extent the court did consider pecuniary gain as 

an aggravating factor when sentencing Appellant, no error occurred.9

¶37 Furthermore, Appellant does not challenge the propriety of 

the remaining aggravating factors relied on by the court; thus, those factors 

alone, absent the pecuniary gain aggravator, subjected Appellant to

aggravated sentences. See id. at 584, ¶ 21, 115 P.3d at 624 (noting that, once 

an aggravating factor is properly found, a defendant is exposed to the 

maximum statutory sentence). Accordingly, even if we were to conclude 

that pecuniary gain was improperly considered in the first instance, 

Appellant’s sentence would remain the same based on the court’s affording 

considerable weight to the other applicable aggravating factors. See State v. 

Hardwick, 183 Ariz. 649, 656-57, 905 P.2d 1384, 1391-92 (App. 1995) (“When 

a trial court relies on both proper and improper factors in aggravating a 

sentence, this court will uphold its decision only where the record clearly 

shows the trial court would have reached the same result even without 

consideration of the improper factors.” (internal quotation marks and 

citation omitted)). 

 

9 Also, the court did not abuse its discretion in affording pecuniary 

gain the weight it did. See State v. Harvey, 193 Ariz. 472, 477, ¶ 25, 974 P.2d 

451, 456 (App. 1998) (recognizing that weighing aggravating and mitigating 

factors is a matter for the trial court’s sound discretion). Indeed, the court 

afforded the factor little significance. 
STATE v. CARDWELL 

Decision of the Court 

13

CONCLUSION

¶38 Appellant’s convictions and sentences are affirmed.